Carswell v. Southwestern Bell Tel. Co.

• Decision Date: 18 December 1969
• Docket Number: No. 15502,15502
• Citation: 449 S.W.2d 805
• Parties: Jack CARSWELL, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 805

449 S.W.2d 805

Jack CARSWELL, Appellant, v. SOUTHWESTERN BELL TELEPHONE COMPANY, Appellee.

No. 15502.

Court of Civil Appeals of Texas,

Houston (1st Dist.).

Dec. 18, 1969.

Rehearing Denied Jan. 29, 1970.

Lloyd M. Lunsford, South Houston, for appellant.

James M. Shatto, Sears & Burns, Houston, Jon Dee Lawrence, San Antonio, for appellee; Will Sears, Houston, of counsel.

BELL, Chief Justice.

In this case appellant filed suit for damages against appellee and James Francis Willis. Appellee filed its motion for summary judgment asserting there was no genuine issue of a material fact as shown by the pleadings, various specified affidavits and exhibits and the deposition of appellant. Appellant filed a reply supported by various affidavits. The court sustained appellee's motion and rendered judgment that appellant take nothing against appellee. It severed the cause of action asserted against Willis and docketed it under a different number.

The transcript is very voluminous, it consisting of 577 pages.

Appellant is and has been for many years in the business of operating a funeral home. His business operation also included furnishing ambulance services. His ambulance service included furnishing emergency service. To operate an ambulance to make emergency calls within the meaning of the term as defined by statute and an ordinance of the City of Houston, a permit from the City was required, though appellant in 1965 and 1966, if not at all times, questioned the right of the City to require a permit. In the latter part of 1965, appellant differed also with the manner in which emergency ambulance calls were being dispatched by the Police Department. The dispatching of ambulances was under the direction of James Francis Willis of the Police Department. The latter part of 1965 appellant's emergency ambulance permit required by city ordinance was suspended by the Chief of Police for a period of six months. Appellant appealed to the City Council and on January 25, 1966, the Council upheld the suspension. Mr. Lee McLemore was Mayor Pro Tempore at the time. Councilman A. L . Miller made the motion to uphold the suspension. Thereafter, the exact date not being shown, appellant filed an injunction suit against the City of Houston in connection with the suspension. A hearing on the application for an injunction was held in the 133rd District Court in February, 1966. The disposition made of it by the court is not shown in the record before us. Neither is the date of disposition shown.

On May 4, 1966, the City Council passed an amended ordinance again requiring permits to operate emergency ambulance service.

The first part of April, 1966, McLemore, Miller and Willis began getting telephone calls where their respective telephones would ring but when they answered no one would respond, but the caller would hang up his telephone receiver. This continued from time to time during April and May, 1966. McLemore and Miller would receive such calls at their homes and business. Willis received such calls at his home. These harassing calls prompted Mr. McLemore to contact Mr . Hoverstock, General Manager of the South Texas Area of appellee, for the purpose of ascertaining what could be done. Mr. Hoverstock reported the matter to Mr. Slaughter, the security man for appellee. Mr. Slaughter first contacted Mr. McLemore and as a result of his contacting Mr. McLemore, he then contacted Mr. Miller and Mr. Willis . Each party gave Mr. Slaughter authority to do whatever was necessary to find out who was making these harassing calls, including the attachment of instruments to telephone company equipment and their telephone lines and to disclose the information to the proper law enforcement agency.

Mr. Slaughter, through Mr. Croswell, Chief Switchman for appellee, made investigation as to which exchange the calls were emanating from. It was determined to be the Jackson Central Exchange. Appellant's telephone numbers are Jackson numbers and any dialing of his telephones would cause the impulses generated to go through the Jackson Central office of appellee. After this was determined, and Mr. Slaughter, knowing appellant's telephone numbers, had the switchman attach a 'pen register' to one of the lines from time to time within the period later to be noticed. The pen register was attached to a line of appellant at its terminal in the Jackson Central office. The pen register will be activated by the dialing of the telephone served by the line to which the register has been attached. As the telephone is dialed the register will make a dash for each numeral dialed and this will be recorded on a tape. If the numeral dialed is '1' there will be one dash. If the numeral '7' is dialed there will be seven dashes. Between the dashes representing the first numeral dialed and the next one dialed there will be a short skip. The result is that after the full number (this includes any letters in a person's telephone number) has been dialed the tape will show what that number is. For instance, Mr. Willis' number was HO 5--3192. When it was dialed the recording on the tape would appear substantially in this fashion: '.....................' The pen register will not record whether the receiving telephone was answered. It cannot register any conversation. It, were it attached to the receiving line, would not in any way reflect from what telephone the dialing had come.

During the period from April 20 through April 25 two dozen calls, stated by McLemore, Miller and Willis to be annoying or harassing calls, were identified by appellee as coming through the Jackson Central office. During the period from April 26 to May 24, 1966, appellant had four business telephone numbers and an unlisted number . A pen register study was made from April 26 through April 28, from May 5 through May 9, and from May 9 through May 24 at 8 a.m. All lines were not studied at the same time. Appellant had four business telephones in his place of business, the numbers being Jackson 3--4423 through Jackson 3--4426. The fifth telephone number was unlisted and this served the home. This number was Jackson 3--4372. The study showed numerous calls from appellant's telephone to McLemore, Miller and Willis. We specially note only the calls on May 23 and 24. The tape showed eight calls to Willis' home from May 23 between 5 p.m. and 1 a.m. on May 24 that came from Jackson 3--4372 . This was from the telephone in appellant's home. For the same period Miller's telephone was called seven times from Jackson 3--4372 . Also for the same period of time McLemore's telephone was called four times from Jackson 3--4372.

About June 2, 1966, Mr. Slaughter, being authorized by McLemore, Miller and Willis, conferred with Mr. Richard De Guerin, Assistant District Attorney of Harris County. He told Mr. De Guerin of the complaints, the investigation made and the results of the investigation. Mr. Slaughter later, in obedience to a subpoena, testified before the Harris County Grand Jury and in County Criminal Court at Law No. 2. Nither he nor anyone acting for appellee filed any complaint against appellant.

On June 9, 1966, the Harris County Grand Jury returned an indictment against appellant charging him with having on May 24, 1966, used a telephone in a manner and with intent to harass, annoy and torment James Francis Willis, and did harass, annoy and torment Willis by calling him eight times on the telephone and terminating each call without saying anything over the telephone, the call not being for a lawful business purpose.

The indictment thus charged a misdemeanor offense covered by Article 476, Texas Penal Code.

After trial in July, 1966, appellant was acquitted. In August he filed this suit against appellee and Willis.

It is somewhat difficult to construe appellant's petition. After much careful and extensive study, we feel appellant is asserting compensatory damages against appellee on the following theories:

1. Appellant's contract with appellee for telephone service expressly and impliedly provided that all telephone calls made from appellant's telephones would be transmitted in privacy. This contractual duty was breached when the pen register intercepted all the numbers dialed and when appellee divulged the numbers to various and sundry persons, including Mr. Willis.

2. There was, by the above alleged conduct, a breach by appellee of its Constitutional duty under the Fourth Amendment to the U.S. Constitution not to invade the privacy of appellant by intercepting the telephone calls.

3. There was a violation of the Federal Communications Act, 47 U.S.C.A., Section 605.

4. Appellee and Willis in furtherance of a conspiracy to destroy appellant and his business procured his indictment by using the information thus acquired and were guilty of malicious prosecution.

In his allegation for compensatory damages, appellant says appellee 'trespassed and conducted itself as aforementioned and also breached its contract * * * causing him physical and mental pain, suffering and anguish as well as damaging his reputation and causing him business and financial losses in the sum of at least $2,000,000.' Appellant had, previous to this allegation of damages, set out the theories of recovery we have mentioned. He lumped his claim for damages, not specifying the amount attributable to any particular theory.

Appellant's Point of Error No. One reads as follows: 'The Court Erred in Granting Appellee's Motion for Summary Judgment.'

We point out that this is so general that it does not comply with the rules for briefing. Rule 418, T.R.C.P. However, we are permitted to look to the statement, argument and authorities under the point to determine whether there is sufficient compliance to authorize us to consider the point. Giving a most liberal construction to the statement, argument and authorities, we have concluded that appellant by the point of error asserts there was error in granting the motion of app...